May 10, 2008

More John Yoo Blogging: Department of "Huh?"

On Brian Leiter's weblog, it appears that there is a Berkeley law school professor who is (a) anxious that people far and wide know that he does not share the views John Yoo advanced in his Torture Memo, and yet (b) anxious that nobody know who he is.

I don't think it works that way.

If you are anxious to remain anonymous, you are not anxious that people know you do not share John Yoo's views.

If you are anxious that people know you do not share John Yoo's views, you are not anxious to remain anonymous.

Your postings on academic freedom and the John Yoo case have been pitch-perfect, from my point of view. Thank you for bringing some sanity to a sad and challenging affair. This is obviously a very painful topic for those of us at Berkeley, for a whole host of reasons.

There is the sadness at seeing a colleague, foolish perhaps in his desire to be near power and/or have his voice heard, and substantively (in my opinion) about as wrong as he could be, but a hardworking and responsible member of our community, having his reputation and career taking a beating; even a self-invited beating is painful to watch when it is in progress.

There is the sadness at seeing our integrity as a community challenged. Like many US law schools we welcomed a number of prominent European Jewish emigres during the WWII years (e.g., David Daube (Freiburg, Oxford), Albert Ehrenzweig (Heidelberg, Vienna), and others); I believe this not only helped launch the university into the first ranks of research universities worldwide, it also deepened this community's commitment to tolerance and openness -- a direct cause, in my opinion, of the campus free speech movement and therefore indirectly at least of much that followed at US campuses. In light of this history, at a personal level I thought long and hard about how I should treat John Yoo when he returned to campus; many of us still struggle with questions of how to balance concern for complicity with the requirements of collegial civility. Even so, never once did I consider a move to revoke John's tenure, because he was in complete compliance with our standards. Only if that changes, due to a criminal conviction or the like, would it be appropriate to revisit the issue, in my opinion.

This is painful because many people who do not know us might perhaps assume that John's work is representative of our views. As you well know, he is as much of an outlier here as he would be at most US law schools. Consider for example the work of my colleague, Chris Kutz. His essay on "Torture, Necessity, and Existential Politics," 95 Cal. L. Rev. 235 (2007), is a wonderful counterpoint to the memos John Yoo worked on, and it expresses something much closer to what I believe is the consensus of the Boalt Hall faculty regarding the torture issue. (Incidentally, Chris' book, Complicity: Ethics and Law for a Collective Age, New York: Cambridge University Press (2000), has been a big help to me in deciding how to relate to John in light of his official actions.) Anyone looking into the John Yoo issue, and particularly wondering how his views fit with those of his colleagues, are advised to consult Chris Kutz' work. Indeed, this is perhaps the best way to demonstrate our views on academic freedom. We are not afraid to let John say what he thinks, because Chris can say what he thinks, and if I and many others are right, history will show that Chris has the better of it. Academic freedom in a nutshell.

I must say that I find the word "painful," used in this context, extremely ill-chosen. Being waterboarded is painful. Thinking that people elsewhere think you agree with John Yoo because you haven't spoken up because you would then be embarrassed to sit next to him at faculty meetings... that does not seem painful to me.

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"because many people who do not know us might perhaps assume that John's work is representative of our views. As you well know, he is as much of an outlier here"

And yet we are told:

"hardworking and responsible member of our community"
"he was in complete compliance with our standards"

I fail to understand why I should not think that Yoo's work is not representative of Boalt.

Our lawyer professor also tells us why academic freedom is meaningless in a law department:

"We are not afraid to let John say what he thinks, because Chris can say what he thinks, and if I and many others are right, history will show that Chris has the better of it. Academic freedom in a nutshell."

Upon hearing this, Michael Savage renews his bid to become Dean of the J School. And Ben Stein offers to join the Physics Department, or the Biology Department, he really doesn't care which.

It's not his work that reflects poorly on Boalt--stories of loony profs abound--but that the egregiousness of it hasn't passed everyone else's thresholds for action. That said, I can think of one situation where the writer would want to remain anonymous: associate professor.